NOOR MOHAMMED Vs. MUSSAMAT JENAB

JUDGEMENT

(1.) Heard learned counsel for the parties. The appellants are aggrieved against the judgment and decree of the trial court dated 28.8.1997 and the judgment and decree of the appellate court dated 1.3.2001. The plaintiff has filed the suit for partition which was dismissed by the two courts below.

(2.) It appears from the facts of the case that the plaintiff Allahadin had three sons viz. Noor Mohd. (Plaintiff) and Mohd. Hussain and Ismile (defendants). The plaintiff's case is that the suit property was gifted by Allahadin by gift deed dated 15.12.1965 (Ex.-1) and therefore, the plaintiff became owner of the portion of the house by virtue of said gift deed. However, the gift deed is not registered one and is on a small piece of single paper. The defendants' case is that the suit property was sold by said Allahadin by registered sale deed dated 12.11.1968 (Ex.A/1). The two courts below after considering the documents produced by both the parties, held that the plaintiff failed to prove the gift whereas the property was sold by registered document to the defendant. According to the learned counsel for the appellant, two courts below committed serious error of law in relying upon the sale deed (Ex.-A/1) produced by the defendant which is dated 12.11.1968.

(3.) It is submitted that before 12.11.1968 Allahadin already gifted the property to the plaintiff on 15.12.1965, therefore, on 12.11.1968 Allahadin was not owner of the property and could not have sold it. It is also submitted that the courts below misread the statement of the plaintiff. The plaintiff nowhere admitted that deceased Allahadin used to mark the thumb for execution of document whereas Allahadin was literate as stated by the plaintiff and his witnesses. It is also submitted that the gift deed dated 15.12.1965 was acted upon and even the defendant admitted the ownership of the plaintiff in writing by signing the letter Ex.-2.